Generally speaking, the Double Jeopardy Clause of the Fifth Amendment prohibits
the one specific government entity from punishing you twice for the same
crime. The prohibition prevents the government from imposing a criminal
sentence and taking your property.
As an example, if somebody is caught with money while traveling through
the state of Nebraska, and the government suspects that money is being
used to purchase illegal narcotics, the government can either take your
money or they can prosecute you for violation of a crime.
The Double Jeopardy Clause bars the government from doing both.
In the State of Nebraska, it is a felony to possess money intended to be
used to purchase drugs punishable by up to five years in prison. In Nebraska,
and most other states, you could also be charged with conspiracy, which
is simply an agreement between two or more people to break the law.
Conspiracy in Nebraska is a class III felony punishable by up to 20 years
In above example, where a person is arrested in Nebraska with a substantial
amount of money, the State of Nebraska must choose between instituting
a civil action to keep the money or pursuing criminal charges.
The Double Jeopardy Clause forbids the State of Nebraska from doing both.
Historically, the way the State of Nebraska has gotten around this problem
is by getting the federal government involved. The Double Jeopardy Clause
does not prohibit separate jurisdictions from proceeding under their own
rules. Consequently, the State of Nebraska would pursue criminal charges
while the federal government in Nebraska would go after the proceeds.
The Double Jeopardy Clause prohibits one jurisdiction from punishing a
person twice. The Federal Government - represented by the United States
Attorneys’ Office - is a different sovereignty than the State of
Nebraska; consequently, both the federal court in Nebraska and the State
of Nebraska, can prosecute a person for the same crime because the State
of Nebraska is a separate and distinct sovereignty from the United States.
This separation is known as “dual sovereignty” or “separate
In situations where a defendant is forced to defend against both a civil
case and a criminal case, an experienced attorney is essential to ensure
rights are protected.
The action to take the money is a civil action, and consequently, a defendant
does not have the protections afforded in a criminal case. Generally speaking,
in a civil action, the defendant has no right to an attorney, the right
to remain silent, the right to a jury trial or the presumption of innocence.
Any seasoned and experienced criminal defense attorney will always advise
a defendant facing criminal charges to assert the right to remain silent
and not talk to anybody about any topic associated with the criminal case.
When both a civil forfeiture and a criminal case proceed at the same time,
the defendant is put in a position where he has to choose between doing
what is best in the criminal case as opposed to doing what is best in
the civil forfeiture case.
The attorneys at the Berry Law Firm have represented clients facing both
criminal charges in state court and civil forfeitures in federal court.
In our experience, once the federal government becomes aware of a pending
criminal case in state court, one of the tactics used by the United States
attorney is to subpoena tax records from the defendant. Another tactic
used by the United States attorney is a deposition. At a deposition, the
defendant is placed under oath, subject to criminal perjury charges, and
questioned. The US Attorney will ask the defendant specific questions
about his income, taxable income, money reported to the IRS, and where
the money came from that was in the vehicle.
If the money is, in fact, being used for legal purposes, this line of questioning
subjects the defendant to federal charges for tax fraud or tax evasion.
Further, those answers by the defendant can be subsequently used by the
State of Nebraska to prosecute the defendant in the state court case.
Of course, the defendant could always assert his Fifth Amendment right
not to answer questions posed by the federal government. The Federal Rules
of Procedure will then permit the federal government to legally presume
that silence is an admission. Once the government has admissions, through
silence, they then simply obtain a default judgment against a defendant
for the proceeds.
Although state and federal jurisdictions have worked together this way
for years, recently, the United States attorney decided to put a stop
to this practice. In a written policy statement dated January 16, 2015,
the United States Attorney specifically indicated the federal government
would no longer be in the business of civil forfeiture of property seized
by state law enforcement pursuant to state law. The new policy does not
apply to property seized by federal and state joint task forces.
A copy of the policy can be found here:
The significance of the policy statement cannot be understated. Instead
of taking both property or money and initiating a criminal prosecution,
states will have to chose whether to keep money they believe is being
used for illegal purposes or prosecute a crime under state law.
Attorneys in the Berry Law Firm have already used this policy statement
to the advantage of clients - working out dismissals of criminal charges
in exchange for voluntary forfeiture of assets or money.
If you or somebody you know has a criminal case in Nebraska or if the state
or federal government is threatening to take property or money, contact
an attorney with the Berry Law Firm for a free consultation.